Priolo v. Workplace Safety and Insurance Appeals Tribunal, 2024 ONSC 2083

CITATION: Priolo v. Workplace Safety and Insurance Appeals Tribunal, 2024 ONSC 2083

DIVISIONAL COURT FILE NO.: 211/21

DATE: 20240411

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT

D.L. Corbett, Sproat and O’Brien JJ.

BETWEEN:

ROBERT PRIOLO Applicant

– and –

WORKPLACE SAFETY AND INSURANCE AND APPEALS TRIBUNAL Respondent

Counsel: Tebasum Durrani and John Bartolomeo, for the Applicant Chris Paliare and Mariam Moktar, for the Respondent

HEARD at Toronto: October 3, 2023

REASONS FOR DECISION

D.L. Corbett J.

1The Applicant seeks judicial review of the Respondent’s decision “that the medical evidence does not establish that the worker’s 2006 accident made a significant contribution to his psychological impairments on the balance of probabilities” (Original Decision, para. 51) and the Respondent’s two subsequent reconsideration decisions denying the applicant’s request to reconsider the impugned decision.¹

Jurisdiction and Standard of Review

2There is no appeal from a decision of the Respondent. Section 123 of the Workplace Safety and Insurance Act, SO 1997, c.16, Sch. A, provides:

(1) The Appeals Tribunal has exclusive jurisdiction to hear and decide,

(a) all appeals from final decisions of the Board with respect to entitlement to health care, return to work, labour market re-entry and entitlement to other benefits under the insurance plan;

3. On an appeal, the Appeals Tribunal may confirm, vary or reverse the decision of the Board.

(4) An action or decision of the Appeals Tribunal under this Act is final and is not open to question or review in a court.

(5) No proceeding by or before the Appeals Tribunal shall be restrained by injunction, prohibition or other process or procedure in a court or be removed by application for judicial review or otherwise into a court.

3As stated by this court in Radzevicius v. WSIAT, 2020 ONSC 319:

The standard of review is reasonableness. None of the questions before the Court are constitutional questions, general questions of law of central importance to the legal system as a whole or questions regarding the jurisdictional boundaries between administrative bodies. The Act also contains a robust privative clause. The Legislature has clearly signaled its intention that the Tribunal’s decisions be given great deference (Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 at paras. 33, 53).

See also: Rodrigues v. Ontario (Workplace Safety and Insurance Appeals Tribunal), 2008 ONCA 719; Morningstar v. WSIAT, 2021 ONSC 5576 (Div. Ct.).

The Impugned Decisions

4The Applicant’s claims arise out of a workplace injury he suffered to his lower back in 2006, when he was 46 years old. The Applicant was working in construction as a load operator at the time.

5Roughly six years after the injury – in 2012 – the Applicant brought a claim to the Board for a psychological impairment entitlement said to arise from his workplace injury. The claim was denied by the Board, and the Applicant then brought objections and appeals to the Board and to the Tribunal. A detailed procedural review is not necessary; ultimately, a unanimous three-member panel of the Tribunal dismissed that Applicant’s appeal of the Board’s denial of his claim. The Tribunal found that the Applicant had a psychological impairment, but also found that the workplace injury was not a significant contributing factor in the Applicant’s psychological condition. This decision was upheld in decisions on the Applicant’s two reconsideration requests.

6The Applicant seeks to set aside the Tribunal’s decision and the two reconsideration decisions and asks this court to declare that the workplace injury was a significant contributing factor to his psychological impairment and thus that he is entitled to benefits in accordance with the Workplace Safety and Insurance Act, 1997, SO 1997, c.16, Sched. A.

Analysis

7The Applicant states the issue on review as follows:

Whether the Tribunal reached an unreasonable decision by denying initial entitlement for a psychological condition as a result of Mr Priolo’s injury (Factum, para. 31)

8The Applicant argues that the impugned decision is unreasonable because it failed to conclude that the workplace injury significantly contributed to his psychological impairments. In making this argument, the Applicant asks this court to undertake a minute review of the evidence and to draw different conclusions than those drawn by the Tribunal. That is not the role of this court, and that is not the nature of a reasonableness review of Tribunal decisions.

9The Tribunal found that the Applicant:

(a) had pre-existing psychological conditions: he was diagnosed in 1998 with a pain disorder and chronic depression with anxiety features;

(b) had a work history involving multiple employers and lengthy absences from the work force;

(c) had multiple sources of pain that pre-existed the 2006 workplace injury;

(d) had an extensive history of drug and alcohol use that impacted on his mental health; and

(e) experienced a break-up of his spousal relationship after the workplace injury, which negatively impacted his mental health.

10In this context, on the basis of the medical evidence before the Tribunal, the Tribunal concluded, on a balance of probabilities, that the pain and consequences of the workplace injury did not contribute significantly to the Applicant’s psychological impairments.

11The Applicant obtained a report from Dr Holub which he provided in support of his first request for reconsideration. The Tribunal found that the Holub Report was solicited after the initial decision and was “very clearly reply evidence”. The Tribunal was not persuaded that the Holub Report called into question the basis of the initial decision, which was predicated on multiple non-compensable life circumstances/stressors and sources of pain contributing to the Applicant’s psychological impairment.

12The Applicant submitted further materials in support of his second reconsideration request, including a second brief report from Dr Holub, and notes of the social worker who solicited the report from Dr Holub. The Tribunal concluded that the report was likely produced by a treating physician in an effort to be supportive of a patient rather than a carefully considered opinion on causation.

13The Tribunal is responsible for reviewing case histories and medical information as part of its core tasks in deciding claims before it. This court is required to defer to the Tribunal’s factual findings unless they are unreasonable. The findings in this case were available to the Tribunal, and it is not the role of this court to undertake a fresh analysis to determine the “most reasonable” available conclusion. Nor does the remedial nature of the scheme of worker’s compensation legislation require the Tribunal to adopt a view of the factual record that is most favourable to the claimant. The Tribunal decides cases on a balance of probabilities on the basis of the evidence before it, which is what was done in this case.

14The Applicant argues that the Tribunal erred in dismissing Dr Holub’s reports as mere “reply evidence” or as “patient advocacy” rather than “considered opinion”. On the former point, it was open to the Tribunal to discount the opinion on the basis that it did, and in any event it also concluded that the doctor’s opinion did not undercut the basis on which the claim had been denied. It is the Tribunal, not the doctor, that decides the claim, and the doctor’s opinion is only part of the evidence before the Tribunal. In respect to the latter point, the Tribunal also found, reasonably, that there was nothing new in the second Holub report, which was a restatement of previous opinions rather than a fresh assessment. I see nothing unreasonable in the way in which the Tribunal handled this evidence.

15The Tribunal’s factual findings are reasonable, and its reasoning discloses no basis for this court to intervene. Finally, I would note that the remedy requested by the Applicant – that this court substitute its view of the case for that of the Tribunal – would not be available in the circumstances of this case. Had this court been persuaded to intervene, the usual remedy would be to send the case back for a new hearing below, and there would have been no reason to depart from this usual remedy in this case.

Conclusion and Disposition

16The application is dismissed. As agreed, there shall be no costs ordered.

“D.L. Corbett J.”

I agree: “Sproat J.”

I agree: “O’Brien J.”

Footnotes

1. 12017 ONWSIAT 1694 (the “Original Decision”), Decision No. 136/17R (the “First Reconsideration Decision” and Decision No. 136/17R2 (the “Second Reconsideration Decision”).